Texas Department of Family and Protective Services
Advisory Council Meeting

June 12 , 2009

The Texas Department of Family and Protective Services (DFPS) Advisory Council met in the Public Hearing Room at the Brown-Heatley Building, 4900 North Lamar Boulevard, Austin, Texas. Council Members present were Chair Ommy Strauch, Imogen Papadopoulos, Gigi Edwards Bryant, Debbie Epperson, Paul Furukawa, Tina Martin and Linda Bell Robinson.

Also present were Commissioner Anne Heiligenstein and department staff.

Agenda Item 1 – Call to Order

Call to order by Chair Ommy Strauch at 11:05 a.m.

Agenda Item 2 – Public Testimony
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Chair Strauch stated that presenters would be given five minutes each to provide testimony. While waiting for the testimony registrant to finish paperwork, Chair Strauch welcomed Tina Martin as the department's new Council member. Chair Strauch then moved to the next item of business, Commissioner Heiligenstein's report, noting that the Council would yield the floor for public testimony when the presenter was ready.

Commissioner Heiligenstein welcomed new Council member Tina Martin. New Council member Scott Rosenbach had a previously scheduled engagement and will join the Council at the next meeting. Staff are pleased to have Ms. Martin's and Mr. Rosenbach's talent added to the Council and look forward to working with them.

Commissioner Heiligenstein informed the Council that today's meeting would be very informative, particularly as it is the Council's first meeting following the 81st Legislative Session.

Commissioner Heiligenstein shared the following administrative announcements: Karl Urban, Assistant Commissioner for Adult Protective Services (APS), has requested to re-assume the position of Director of Policy and Performance Management. Commissioner and the executive team are very appreciative of Karl's service both as Assistant Commissioner and his previous work as Director of Policy and Performance Management. His move back to the role of Director of Policy and Performance Management is effective Monday. In the interim, Joyce James, Deputy Commissioner, will be serving as Acting Assistant Commissioner for APS while the position is posted and filled. Commissioner Heiligenstein will be consulting with Chair Strauch in terms of making the decision to fill this job.

Commissioner Heiligenstein stated that Executive Commissioner Hawkins' retirement will be a great loss to the Health and Human Service Commission (HHSC) agencies. Executive Commissioner Hawkins announced his intention to retire after over 30 years of state government. In addition to working for a governor and a president, he was chosen by Governor Perry to orchestrate the reorganization of all of Health & Human Services in 2003. He quite frankly did an amazing job. Commissioner Heiligenstein has had the pleasure of working with Executive Commissioner Hawkins for a number of years. This is a true loss; his wisdom, guidance, and empathy for clients and staff will be remembered. We certainly wish him well in his retirement and other great adventures that lie ahead for Executive Commissioner Hawkins.

Commissioner Heiligenstein stated the 81st Session was a difficult one for Legislators. The session had tough financing decisions due to the weakened economy. The amount of available revenue was not what it has been in past sessions; however, Legislators still made substantial investment in DFPS programs. Commissioner Heiligenstein thanked the staff for a job well done; their credibility and dedication has been recognized by the decision makers. Commissioner Heiligenstein asked Cindy brown, Chief Financial Officer, to give background on appropriations and additional investments Legislators have made to DFPS programs.

Ms. Brown began by stating that the session just ending was unique due to the federal stimulus package. Without the additional stimulus funds, this would have been a tough session in terms of decision-making. DFPS received $109 million more total dollars for FY 2010-2011 biennium and 324 additional FTEs by FY 2011. Out of the department's 18 exceptional items, the first 12 were either completely or partially funded, and we consider this to be a successful outcome. Ms. Brown briefly listed the funded exceptional items as they are provided in greater detail in the Council packets:

The funding gap for Adult Protective Services in-home program caused by the loss of federal funds;

The mandatory and optional programs from the new federal Fostering Connections act;

Expansion of the intensive psychiatric transition program in foster care;

Additional FTEs to meet the federal standards of face-to-face contact in Family Based Safety Services;

Additional resources to strengthen services to youth transitioning from foster care that include additional FTEs, IT modification, and seed money for transition centers;

In addition to these exceptional items, the Legislature also funded the following key items:

A rate increase for foster care providers;

One-time funding for Child Care Licensing division to invest in high quality programs for infants and toddlers; and

Additional APS FTEs for quicker state school inspections and for lower span of control for those supervisors- this was part of the Department of Justice State School settlement.

The Legislature also addressed the department's additional funding needs for the remainder of this fiscal year through the supplemental appropriations bill. One final funding item from the session that Ms. Brown highlighted is the one-time $800 payment for most state employees to be paid in August of this year. To be eligible, employees would have to: be continuously employed from March 31 through August 1, 2009, have received no targeted pay increase elsewhere through the appropriation process, and earn under $100,000 per year. Most DFPS employees are eligible under these guidelines. The department feels fortunate for all of the funding received and is in the beginning stages of development of our DFPS FY 2010 operating budget.

Commissioner Heiligenstein thanked Ms. Brown and her finance team for doing a terrific job working with legislators and maximizing federal funding. Commissioner Heiligenstein also thanked the government relations and legal teams for their roles in the legislative process, for helping to articulate issues and providing accurate information quickly. Commissioner Heiligenstein then asked Katie Olse, External Relations Lead, to provide a summary of key legislation that passed.

Ms. Olse stated that the general session ended June 1, and was a record breaking year. There were 7400 bills filed this session, 20% more than last session. Of those, the department tracked 689 bills, and of those 131 were ultimately enrolled. The Governor's veto period does not end until June 21. Ms. Olse provided the following high level overview of key bills, which were included in the Council packets:

HB 704 gives courts the option to extend continuing jurisdiction over a foster child who ages out if it is requested by the youth. Youth must be receiving transitional services, and jurisdiction ends the day the child turns 21 or if the youth withdraws consent.

HB 1151 and SB 2080 passed with Fostering Connections language amended on to them. The Fostering Connections bill provides Texas with enabling legislation to implement the guardianship assistance program; this program allows a relative or fictive kin to receive financial assistance after being a verified foster home for at least 6 months. Allowing financial assistance for these relatives will enable some to be able to care for a child who could not otherwise have afforded to take the child into their home. The bill extends adoption assistance and permanency care assistance to age 21 for eligible youth, and it extends foster care until age 21 for eligible youth.

HB 1912 requires DFPS to expand transition planning to children who are 14 years old and in permanent managing conservatorship (PMC); expanded services will include enrolling them in Preparation for Adult Living (PAL) services before they turn 16.

HB 2225 creates a nine-member adoption review committee that, along with DFPS, will conduct an extensive review of the foster care system to:

identify obstacles to permanent placements including adoption; and

develop ways to improve the system by:

reducing length of time in substitute care,

reducing the number of foster children placed outside their home county, and

enhancing adoption procedures.

SB 983 requires DFPS to provide a personal identification certificate, social security card (or replacement card), and proof of Medicaid enrollment (if appropriate), as well as the other documents currently provided, to a youth aging out of foster care no more than 30 days before the youth leaves care. The bill also requires that DFPS collaborate with DPS and TEA to develop a plan to ensure that each child in PMC has the opportunity to take a driver’s education course and obtain a driver’s license before leaving care. A report on the plan is due December 1, 2010.

SB 1723 requires DFPS to make available an informational manual for “voluntary caregivers” of children involved in a CPS investigation. The manual will explain the role of a voluntary caregiver, including information on how to obtain any documentation necessary to provide for a child’s needs.

SB 2080 creates a task force to establish a strategy for reducing child abuse and neglect and improving child welfare and health. The task force will submit a strategic plan no later than October 1, 2010.

Provisions specific to DFPS include:

the addition of a process involving the Office of the Inspector General (OIG) in APS investigations, to be worked out via an MOU (Memorandum of Understanding);

SB 68 makes several changes to child care licensing definitions and a few other provisions impacting Child Care Licensing. Most significantly, this bill places in statute exemptions from child care licensure that are currently in rule- as a result of the Office of the Attorney General’s determination that DFPS does not have the authority to exempt programs in rule alone.

SB 572 requires childcare owners or workers who transport children who are chronologically or developmentally under the age of nine to have at least two hours of annual training on transportation safety. This training is in addition to current training requirements and applies to licensed child care centers, licensed child care homes, registered family homes, listed family homes, general residential operations (GROs), residential treatment centers (RTCs), independent foster group homes, and agency foster group homes. Agency foster family homes and independent foster family homes are excluded.

HB 3112 requires the Department of Aging and Disability Services (DADS) to ensure that the application for guardianship is filed with the court within 70 days of the Adult Protective Services (APS) referral for guardianship, regardless of whether DADS handles the application directly or forwards it to a contractor/other party. A one-time 30-day extension can be added to this timeframe if it is approved by DFPS and determined to be a good faith need and in the best interest of the client.

SB 643 is the State School Reform bill that contains numerous provisions.
Provisions specific to the Department of Aging and Disability Services (DADS) include:

the name change of “state schools” to “state supported living centers” (SSLCs);

the designation of Mexia State School as a forensic SSLC for high risk alleged offender residents;

random drug testing of SSLC employees by DADS;

video surveillance cameras in public areas in all SSLCs;

the creation of the Office of the Independent Ombudsman, which will place an assistant ombudsman at each SSLC;

annual unannounced on-site surveys by DADS of Home and Community-Based Services (HCS) group homes; and

creation of a database (in consultation with DFPS) to collect and analyze information regarding the investigation and prevention of abuse/neglect/exploitation in SSLCs, public or private Intermediate Care Facilities – Mental Retardation (ICFs-MR), or HCS group homes.

SCR 77, known as the "DOJ Settlement" resolution, grants legislative approval of the settlement between the Department of Justice and the State of Texas. Within the funding for the settlement is $3.15 million to make the following changes:

Decrease the timeline for serious incident investigations from 14 days to 10 days;

For each investigation, review prior investigations involving the same alleged victims and alleged perpetrators; and

Ensure management review of every APS investigation.

Commissioner Heiligenstein announced that Governor Perry intends to call a special session; one subject that could be addressed in special session is Sunset Review. HHSC agencies were scheduled for Sunset Review in 2011, and the department had started preparing evaluation materials. Due to possibility of postponing HHSC's Sunset Review until 2013, HHSC has asked DFPS to put Sunset Review activities on hold for now.

With the consent of our Council Chair, we will be making a change to the rule adoption process. For rule changes or new rules that have been approved by the Council for publication in the Texas Register and receive either no comments or only editorial comments, these rule changes will automatically be referred to the HHSC Executive Commissioner with the Council’s recommendation to adopt them. This is a change to our current process of bringing all rule changes and new rules to the Council twice, when the rule change is first proposed, and a second time to ask the Council to recommend the rule change for adoption. Directly recommending the undisputed rules for adoption will significantly shorten the current time frame for rule adoptions and, in effect, will quicken response time for the programs to implement new rule changes. However, the outcome of the rule with no comments or only editorial comments will be shared with the Council. For those rule changes that have comments that are not editorial, those rules will continue to be brought back to the Council for further recommendations.

Chair Strauch advised the Council that adopting this process will align the DFPS Council with the other HHSC Council operations.

Commissioner Heiligenstein invited Assistant Commissioner Sasha Rasco to provide an overview of the Minimum Standards Evaluation that is currently underway.

Ms. Rasco explained that the Child Care Licensing (CCL) program is responsible for four sets of regulations:

Center based care of which there are just over 9000 centers;

Home based for registered and licensed homes (over 8000 homes);

Facility based settings which include shelters, children's homes, and therapeutic camps (approximately 90); and

Statute requires that minimum standards be reviewed every six years and CCL is currently receiving public comment regarding changes to both Daycare and Residential Minimum Standards. Monday, surveys will be posted online for providers and will remain online until July 31. Survey notification will occur through email and traditional mail. Phone calls and written suggestions will be accepted in addition to the surveys. Foster parents will also be contacted for their input. When the survey closes, results will be compiled and posted online and shared with the Council.

Additionally, the governor-appointed Committee on Licensing Standards will host a public hearing September 9, 2009 for verbal testimony. Other stakeholder meetings will occur in the fall, the dates of which will be shared with the Council.

Ms. Rasco referenced another project mentioned by Chief Financial Officer, Cindy Brown. Child Care Licensing received a rider appropriating $4 million to invest in quality infant and toddler programs. The $4 million is part of a larger amount of $11 million that Texas received for quality infant and toddler care. The Texas Workforce Commission (TWC) will be distributing the remainder to achieve the same outcomes. Again the $4 million is targeted to child care settings used by parents. A stakeholder meeting will be held Monday, June 15, to receive input on how best to effectively use this money for quality care. An implementation plan will be developed and must be approved by the Legislative Budget Board and the Governor's Office.

Agenda Item 2–Public Testimony

Chair Strauch returned to agenda item 2 to accept public testimony from Ms. Johana Scot, representing the Parent Guidance Center, on the topic of forgotten stakeholders.

Ms. Scot commended the Council on the work they have done over the past few months. Ms. Scot appreciates the importance of respecting the rights of parents when investigating abuse and neglect. She visits the DFPS website and has seen the statistics that removals are down and families are staying together more often: she agrees this is in the best interest of children and families. She feels that children are still being protected, stating the department is creating a good balance. Ms. Scot referred to Senate Bill 1440 as disturbing legislation that she and others are working to get vetoed. Ms. Scot stated she sits on two national parent and family advisory councils, she founded and directs a 501c 3 organization, she founded a Families Together Coalition, and she is an advisory member to the Permanent Judiciary Commission on Children and Families.

In reference to Senate Bill 1440 (Note: this bill was subsequently vetoed by the Governor), Ms. Scot visits with families and does not appreciate the disrespect of this type of legislation. Ms. Scot opines that SB 1440 negates 4th amendment rights by forcing a parent to choose between asserting their rights and being accused of interfering with an investigation. She believes that families will be more in fear of DFPS with this legislation, and she acknowledges the department has been working to forge relationships with families by finding ways to keep them together. Ms. Scot also feels that anonymous bogus reporting needs to be dealt with. She wants the Council to understand that her group is not a fringe group.

Council member, Gigi Bryant posed the question to Ms. Scot, what is the policy that you think worked before to help protect children? Ms. Scot replied that the department was told they did not handle things correctly with FLDS and Gates. Ms. Scot believes that if the department's rules are followed as they are currently written, children and families will be protected. The problem, according to Ms. Scot, is that investigators tell parents they are authorized to enter the home when they are not. Various groups want to make it so that Child Protective Services investigators have an affidavit that will allow them to go into a home, giving higher importance to fair probability than to 4th amendment rights. In the interest of time, Ms. Bryant offered to meet with Ms. Scot after the meeting to continue the discussion.

Pam McDonald, Director of Rate Analysis for Long Term Care with the Health and Human Services Commission (HHSC), stated that rate setting is done by HHSC. The 2010-11 general appropriations act appropriated $6.2 million for rate increases for 24-hour residential care in general revenue funds for Fiscal Year 2010, and $6.7 million in general revenue funds for FY 2011. At this time, HHSC needs to amend the rules that govern how HHSC sets rates for the program. The first step is to put rules into place and then address the rate setting process. The proposed rule change will be posted to the Texas Register June 26. Information on the proposed rates will be available to the public June 29, and a public hearing is scheduled for July 13. Commissioner Heiligenstein and Executive Commissioner Hawkins will consider comments and recommendations. The new rates will become effect September 1, 2009. The legislature was very clear as to how they intend this money to be spent. The rule before the council will allow payment rates to foster families to increase 3.33 %. Payment to Child Placement Agencies (CPA) will increase revenue by 1.33 % for the CPA and payments to foster families by 3.33%. Residential care facilities will receive a payment increase of 9.3%, and emergency shelters will get an increase of 8.68%. All of these rate increases are based on clear direction from the legislature on how they want the appropriation funds to be distributed. HHSC will provide a rate information packet for the public that explains how the rate increases were calculated.

Ms. McDonald requested that the Council recommend to Commissioner Heiligenstein and Executive Commissioner Hawkins that these rules be proposed and published in the Texas Register for public comment.

Dr. Robinson moved that the Council recommend for proposal by the Health and Human Services Commission the amendment to 355.7103 concerning rate setting methodology for 24 hour residential child care reimbursements, as reflected in the Council's June 12, 2009 agenda Item 4a. Dr. Furukawa provided a second, and the motion carried.

Gail Gonzalez, Director of Placement in Foster Care and Adoption in Child Protective Services, presented the rule change based on legislative decision for the Intensive Psychiatric Transition Program (IPTP). The post-hospitalization step-down program is to move foster children who are ready to be discharged from the psychiatric hospital into acute stabilization care or as an alternative to hospitalization we can keep them in a less restrictive community setting. Previously, an appropriation rider allowed the department to consider as eligible population the children who had at least 3 psychiatric hospitalizations within the last 12 months. A new appropriation rider allows the department to expand the program to include a child who had at least 1 psychiatric hospitalization within the last 12 months. Ms. Gonzalez additionally clarified the child must be ready for discharge and at imminent risk of subsequent hospitalization, and specified the Assistant Commissioner or her designee would determine that said child is in crisis and is in need of this acute stabilization. This enhancement to IPTP will allow for the stabilization of more children in this setting and allow the department to be good stewards of the tax payer's dollars in utilizing this program.

Ms Gonzalez requested that the Council recommend to Commissioner Heiligenstein and Executive Commissioner Hawkins that these rules be proposed and published in the Texas Register for public comment.

Ms. Papadopoulos moved that the Council recommend for proposal by the Health and Human Services Commission the amendment to article 700.2383 concerning the Intensive Psychiatric Transition Program, as reflected in the Council's June 12, 2009 agenda, item 4.b. Ms. Bryant provided a second. With no further discussion, the motion carried.